Date: Wed, 06 Aug 1997 08:12:37 -0400
From: Timothy Ross Wilson
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
High Court Ref no:001377/97
Case no:232/97
Magistrate's Serial no:79/97
THE STATE
v
GORDON KAMPHER
JUDGMENT
FARLAM J:
[1] The accused in this case was convicted by an additional magistrate for
the district of Knysna on a charge of sodomy and sentenced to 12 months'
imprisonment suspended for three years on condition that he is not again
convicted of sodomy committed during the period of suspension.
[2] When the case came before me on review, I asked the magistrate for his
reasons for conviction and specifically raised the question as to whether
the crime of sodomy continues to exist since the coming into operation of
the Interim Constitution, Act no 200 of 1993.
[3] The event which led up to the bringing of the charge against the accused
took place on 10 January 1997 when the Interim Constitution was still in
force. The accused appeared in court for the first time on 7 February 1997
(by which time the new Constitution, Act no 108 of 1996, had in the main
come into operation).
[4] After two postponements the charge was put to the accused. In it the
allegation was made that on or about 10 January 1997 and at or near Knysna
Correctional Services, in the district of Knysna, he had wrongfully and
intentionally had sexual intercourse per anum with another male person, one
Ignatius Jones.
[5] He pleaded guilty to this charge and was then questioned by the
magistrate in terms of section 112(1)(b) of the Criminal Procedure Act, no
51 of 1977.
[6] The following questions and answers were recorded by the magistrate
during this questioning:
"V. Was u op 10/1/97 te Knysna gevangenis in die distrik Knysna?
A. Ja ek was verhoorafwagtend.
V. Wat het toe daar gebeur?
A. Ek vra die klaer Ignatius Jones of hy al geseks het, en hy sEA ja. Ek
vra hom toe of ek ook kan toe sEA hy dis reg. Hy het toestemming gegee.
V. Wat het julle gedoen?
A. Ek het hom gepenetreer. Hy het net ontvang en niks uitgedeel nie.
V. Waar het dit gebeur?
A. By die opname sel.
V. Waar het u hom gepenetreer?
A. Van agter af.
V. Ignatius Jones, is dit 'n man?
A. Ja - ons het geen kondoom gebruik nie.
V. Het u geweet u optrede is verkeerd en dat u gestraf kan word?
A. Ja, hy ook. Ons het maar 'n kans gevat."
[7] The prosecutor having accepted the plea, the accused was convicted. The
prosecutor then asked for the case to be disposed of without proof of the
accused's criminal record (if any). The accused then informed the
magistrate that he was unmarried, but had two children. He said that he
had completed standard 4 and worked as a bricklayer at Knysna Concrete. He
informed the court that his salary was R320 per week and that he had no
money to pay a fine. He asked for a suspended sentence. After the accused
had addressed the magistrate in mitigation of sentence, the sentence to
which I have already referred was imposed.
[8] In answer to my query as to whether the crime of sodomy still existed
after the coming into operation of the Interim Constitution the magistrate
replied as follows:
"1. Die Interimgrondwet, Wet 200 van 1993 het definitief die effek dat geen
diskriminasie meer mag plaasvind op grond van ras, kleur, geslag of
seksuele oriEBntasie nie. Dit is so dat sodomie 'n gemeenregtelike
misdaad is en daar kan met oortuiging geargumenteer word dat sodomie, of
eerder 'n vervolging daarteen, contra die bepaling van die Wet - supra is.
2. Ek is nie bewus van 'n beslissing van die Konstitutionele Hof wat bepaal
dat 'n vervolging jeens sodomie 'n inbreuking op 'n persoon se grondwetlike
regte tot gevolg het nie.
3. In SvH 1995 (1) SA 120 (K) op bl. 123 paragraaf H en I word die volgende
gemeld: "Be that as it may, sodomy is still a crime in South Africa and
that appellant has to be punished. We have given very careful
consideration to the question of sentence and eventually came to the
conclusion that imprisonment is not a proper sentence in modern days for a
first offender convicted of sodomy, especially where the initiative came
from the other party, where both parties are adults, and the act is
committed in private."
4. Op bladsy 129 paragraaf F tot I meld Sy Edele Regter Ackerman die
volgende: "I would stress that this judgment deals solely with the case of
homosexual acts performed in private by consenting male adults. One
possible qualification needs to be mentioned. This judgment deals only
with the position in society as it normally functions. There may be
special situations where a legitimate societal interest might justify a
different view being taken of private sodomy, even between consenting
adults. The position of prison inmates come to mind. There may well be
others. The proscription of private sodomy between consenting adults
undergoing imprisonment could well serve a legitimate societal interest.
Such proscription would, however, not be on the basis of discrimination
against male homosexual acts, but because the situation in prison might
necessitate the proscription of all sexual relationships or contact
involving prisoners whether homosexual or heterosexual. The proscription
would be directed against the sexual activity."
5. Dit is duidelik dat beskuldigde in die aangeleentheid die seksdaad
geEFnisieer het. Dit het toe plaasgevind in die opname sel. Dit is
respekvol my opinie dat private geslagverkeer tussen volwassene manspersone
wat dit met toestemming doen, 'n simpatieke tegemoetkoming regverdig. Die
huidige voorval vind plaas in die gevangenis en daarom is die woorde van Sy
Edele Regter Ackerman met respek korrek as gemeld word dat "--- There may
be special situations --- en later --- consenting adults undergoing
imprisonment could well serve a legitimate societal interest."
6. Ek is respekvol van oordeel dat beskuldigde 'n boodskap moet kry dat hy
die volste reg het om sy seksuele voorkeur uit te oefen, maar dat dit binne
perke gedoen moet word. Die regte en belange van nie-homsexuele mans in
die gevangenis moet beskerm word. Dit is so dat dit wenslik is dat hulle
nie blootgestel word aan homoseksuele dade van ander nie, hetsy visueel of
andersins. Die voorval was myns insiens ook nie in volle privaatheid gehul
nie.
7. Ek is voorts respekvol van oordeel dat die handhawing van seksuele
verhoudings in die gevangenis ongewens is.
8. In die lig van bogemelde is ek respekvol van oordeel dat die misdaad van
sodomie steeds bestaan. Hoewel die vonnis een is van opgeskorte
gevangenisstraf, is dit verder my respekvolle siening dat die boodskap soos
gemeld in paragraaf 6 hierdeur wel aan beskuldigde oorgedra word.
9. Sy Edele die Hersieningsregter word derhalwe respekvol versoek om
skuldigbevinding en vonnis te bekragtig."
[9] The Attorney-General, to whom I referred the matter for his comments,
does not support the conviction and asks that the conviction and sentence
be set aside. He has kindly furnished me with a copy of a memorandum
prepared by a member of his staff, Adv A Stephen, with which the
Attorney-General himself agrees. I am grateful to both of them for the
memorandum, which assisted me in preparing this judgment.
[10] In his memorandum Adv Stephen submits that the criminalisation of
sodomy is in conflict with sections 8(1) and 13 of the Interim
Constitution.
Sections 8(1), (2) and (4) of the Interim Constitution read as follows:
"8. (1) Every person shall have the right to equality before the law and to
equal protection of the law.
(2) No person shall be unfairly discriminated against, directly or
indirectly, and, without derogating from the generality of this provision,
on one or more of the following grounds in particular: race, gender, sex,
ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief, culture or language.
(4) Prima facie proof of discrimination on any of the grounds specified in
subsection (2) shall be presumed to be sufficient proof of unfair
discrimination as contemplated in that subsection, until the contrary is
established."
Section 13 of the Interim Constitution was in the following terms:
"Every person shall have the right to his or her personal privacy, which
shall include the right not to be subject to searches of his or her person,
home or property, the seizure of private possessions or the violation of
private communications."
[11] Hunt, South African Criminal Law and Procedure, 3rd edition (1996) by J
R L Milton at p 248, repeating the definition of the crime appearing in the
2nd edition (1982), p 271, defines the crime of sodomy as follows:
"Sodomy consists in unlawful and intentional sexual relations per anum
between two human males."
[12] It is a controversial question as to whether the Romans, before their
law came under the influence of Christian doctrines, penalised homosexual
relations. The lex Scatinia or Scantinia, the date of which is uncertain,
is sometimes referred to by those who contend that pederasty was punished
in Rome before the law began to be influenced by the teachings of the
Christian Church but the content of the law is uncertain1. Whatever its
content, however, it was, to quote Gibbon "insensibly abolished by the
lapse of time and the multitude of criminals"2.
[13] From the third century AD onwards, after Christianity became the
official religion of the State, penal laws were put on the statute book
which criminalised conduct which was previously regarded as merely sinful
or as wrongful from the point of view of private law. Gibbon3 gives the
essence of this legislation in the following words:
"The laws of Moses [which strongly condemned homosexuality on the grounds
that it denied procreation4] were received as the divine original of
justice, and the Christian princes adapted their penal statutes to the
degrees of moral and religious turpitude."
[14] Feeling against homosexual practices hardened during the fifth and
sixth centuries and homosexual activity was specifically prohibited in
Roman Law as a capital crime: see Novel 77.1 and Novel 141 in which
Justinian referred to the destruction of the inhabitants of Sodom, as
described in Genesis 19.
[15] The researches of modern scholars, most notably John Boswell, formerly
a professor of history at Yale University5 , have demonstrated that during
the High Middle Ages in Europe (from the tenth to the fourteenth centuries)
homosexual relations were treated with tolerance and understanding6. From
the fourteenth century onwards there was what Ian Corbett calls "an
extraordinarily rapid change of mind"7. The Christian Church began to
equate homosexual activity with heresy and those accused of it were dealt
with in the ecclesiastical courts. Later the secular courts also began to
punish persons accused of these crimes.
[16] In the Roman Dutch law and in the law of the neighbouring countries
various acts by which a person sought to obtain sexual gratification in a
manner considered contrary to the order of nature were penalised by
criminal sanctions, the crime being called sodomie, venus monstrosa or
onkuysheyd tegens de Natuur.
[17] Joost Damhouder (1507-1581), one of the earliest writers in the
Netherlands on criminal law, divided sodomie into three categories:
self-masturbation, unnatural sexual acts between one human being and
another (not just between persons of the same sex) and bestiality8. U
Huber (1636-1694), who was a Frisian jurist, was of the view that only
unnatural intercourse between one human being and another and bestiality
were criminal9. Simon van Leeuwen (1626-1682), who was an advocate who
practised in Holland before becoming, shortly before his death, the
assistant registrar of the Hooge Raad at The Hague, was of the view that
only unnatural acts between males (and not those between females or between
males and females) and bestiality were punishable as sodomy10. Similar
views were expressed by D G van der Keessel (1735-1816), who was a
professor at Leyden11, and J van der Linden (1756-1835)12.
[18] In South African practice from an early stage the Roman Dutch crime of
sodomie or venus monstrosa or onkuysheyd tegen de Natuur was, as Hunt
says13, split into three separate crimes: sodomy, bestiality and a residual
group of proscribed "unnatural" sexual acts referred to generally as
"unnatural offences": see R v Gough and Narroway 1926 CPD 159 at 161. Some
"unnatural" sexual acts which were punishable in Roman Dutch law (at least
according to some jurists) are not regarded as crimes in our law.
[19] It seems to be correct to say that all acts aimed at sexual
gratification occurring between consenting adult persons of opposite sexes
have not attracted penal sanctions in the common law as it has been applied
in this country. This appears also to have been the approach of the later
Roman Dutch authorities whose views on the point have been referred to by
our courts14.
[20] Certain consensual acts occurring between males have been punished as
"unnatural sexual offences". The precise ambit of the definition of this
crime has proved difficult to define. It is not necessary for me to deal
with the problem in this case: the cases are collected in Hunt15 and in an
interesting article by Professor J M T Labuschagne16.
[21] As far as can be discovered consensual sexual acts between females do
not constitute a crime in our common law and probably were not so regarded
in the Netherlands at the close of the eighteenth century and possibly
earlier17. Certainly there is no case reported in our law reports in which
a woman or women was or were prosecuted for acts of this kind. If such
acts were crimes in 1806 such crimes have long since been abrogated: cf
Green v Fitzgerald and Others 1914 AD 88 and R v M, supra.
[22] Professor J R Milton, the editor of the 3rd edition of Hunt18, submits
that the effect of section 9(3) of the 1996 Constitution (which is
similarly worded to section 8(2) of the Interim Constitution) is to bring
about the decriminalisation of sodomy, at least when practised by
consenting adults.
[23] Professor Milton submits19 that the clear import of section 9(3) of the
1996 Constitution (and section 8(2) of the Interim Constitution), in so far
as it relates to unfair discrimination on the ground of "sexual
orientation", is that
"homosexual activity enjoys the same constitutional status as heterosexual
activity. That is to say, homosexual sexual intercourse can only be
lawfully prohibited on the same grounds as heterosexual sexual intercourse
can be lawfully prohibited. In so far as heterosexual sexual intercourse,
in private, between consenting adults, is not prohibited by law, it follows
that homosexual sexual intercourse between consenting adults in private
cannot, in South African law, be the subject of the criminal sanction.
It follows from this that punishment of sodomy between consenting adults in
private is unconstitutional.
By parity of reasoning, in so far as heterosexual sexual intercourse is
punishable if it occurs in public or without the consent of one of the
parties, or where one of the parties is under the age of consent,
homosexual sexual intercourse which is not in private, or without the
consent of one of the parties, or with a person who is under the age of
consent may be punished as sodomy."
(He then proceeds to discuss the question of what the "age of consent"
should be in relation to sodomy, a matter which does not arise for decision
in this case because it is not suggested that the "complainant" in this
case was not an adult.)
[24] Similar views to those of Professor Milton in the passage I have quoted
are expressed by Professor C R Snyman in Criminal Law 3rd edition, p 341.
[25] I agree with Professors Milton and Snyman that section 8(2) of the
Interim Constitution and section 9(3) of the 1996 Constitution, with their
specific reference to sexual orientation as a proscribed ground of unfair
discrimination, clearly evince an intention on the part of the framers of
the Constitution to expand the grounds of tolerance and understanding so
that sexual activity between consenting male adults is no longer subject to
criminal sanction. I do not think that it is necessary to invoke the
constitutional entrenchment of the right to privacy to come to this
conclusion. In this regard I agree with the following comment made by Mr
Justice Cameron in an article written before he became a judge20:
"[T]he privacy argument has detrimental effects on the search for a society
which is truly non-stigmatizing as far as sexual orientation is concerned.
On the one hand, the privacy argument suggests that discrimination against
gays and lesbians is confined to prohibiting conduct between adults in the
privacy of the bedroom. This is manifestly not so. On the other hand, the
privacy argument may subtly reinforce the idea that homosexual intimacy is
shameful or improper: that it is tolerable so long as it is confined to the
bedroom - but that its implications cannot be countenanced outside.
Privacy as a rationale for constitutional protection therefore goes
insufficiently far, and has appreciable drawbacks even on its own terms.
The only plausible argument which adequately recognizes sexual orientation
as an impermissible ground of discrimination is based on a claim to the
equal protection of the law. This argument asserts unequivocally that
discrimination on the ground of homosexuality is untenable, because sexual
orientation is - or should be - a matter of indifference morally and
constitutionally. There is thus no basis which can be countenanced before
the law for treating homosexual men and women differently."
[26] Nor do I think that sodomy occurring between two adult male persons in
public should be punished as sodomy. Just as fornication occurring in
public can be prosecuted as public indecency21 so can sodomy.
[27] Professor Milton submits22 that where the act is committed by one male
person without the consent of the other or where that other is below the
age of consent then it is still competent for a prosecution to be brought
on a charge of sodomy23. It is not necessary in this case to express an
opinion on the point as to whether Professors Milton and Snyman are correct
in so submitting.
[28] In view of the provisions of section 8(4) of the Interim Constitution
(and section 9(5) of the 1996 Constitution which is similarly worded) I do
not think it can be said that the presumption of unfair discrimination has
been or indeed can in a case such as this be rebutted.
[29] It is now necessary for me to consider whether the discrimination
against male persons on the ground of sexual orientation, which is inherent
in the criminal penalisation of acts of sodomy committed by consenting
adult males, can be saved under section 33(1) of the Interim Constitution
(and section 36(1) of the 1996 Constitution which is based upon it although
there are some differences).
Section 33(1) of the Interim Constitution, in so far as material reads as
follows:
"33. (1) The rights entrenched in this Chapter may be limited by law of
general application, provided that such limitation -
(a) shall be permissible only to the extent that it is-
(i) reasonable; and
(ii) justifiable in an open and democratic society based on freedom and
equality; and
(b) shall not negate the essential content of the right in question"
[30] It is difficult to see how any discrimination which has already been
stigmatised as "unfair" (which is what I consider the present
discrimination to be) can ever be regarded as permissible to the extent
that it is reasonable and justifiable in an open and democratic society
based on freedom and equality.
[31] Be that as it may, it may be helpful in seeking to find the answer to
the question as to whether the criminalisation of acts of sodomy committed
by consenting male adults can be justified under the Interim Constitution
to have regard to what the legal position is in certain foreign countries
which may be described as open and democratic societies based on freedom
and equality. It is also important in considering this question that one
should obey the injunctions set forth in section 35(1) and (3) of the
Interim Constitution (and section 39(1) and (2) of the 1996 Constitution
which is similarly worded).
Section 35(1) and (3) read as follows:
"35. (1) In interpreting the provisions of this Chapter a court of law shall
promote the values which underlie an open and democratic society based on
freedom and equality and shall, where applicable, have regard to public
international law applicable to the protection of the rights entrenched in
this Chapter, and may have regard to comparable foreign case law.
...
(3) In the interpretation of any law and the application and development of
the common law and customary law, a court shall have due regard to the
spirit, purport and object of this Chapter."
[32] It is convenient to begin with the legal position in England. Before
1553 sodomy and bestiality (both called "buggery") were punished in the
ecclesiastical courts. In 1553 an act passed in the reign of Henry VIII
gave the secular courts jurisdiction to punish "buggery" (which included
heterosexual as well as homosexual sodomy). In 1885 criminal liability was
extended to "acts of gross indecency" which were committed by male persons
in public or in private. The law was consolidated in the Sexual Offences
Act, 4 & 5 Eliz II c 69, 10 1956. In 1954 a committee under the
chairmanship of Sir John Wolfenden was appointed by the British Government
to consider the state of the law relating to prostitution and
homosexuality. It reported in September 1957 and recommended certain
changes in the law on both topics. Regarding homosexuality it recommended
(by a majority of 12 to 1) that homosexual practices between consenting
adults in private should no longer be a criminal offence. The principles
on which this recommendation was supported were set out as follows in
section 13 of the Committee's report:
"[T]he function [of the criminal law], as we see it, is to preserve public
order and decency, to protect the citizen from what is offensive or
injurious and to provide sufficient safeguards against exploitation or
corruption of others, particularly those who are specially vulnerable
because they are young, weak in body or mind or inexperienced or in a state
of special physical, official or economic dependence."
The recommendation in regard to homosexual practices between consenting
adults in private was based on the principle stated by them in section 61
of the Report as follows:
"There must remain a realm of private morality and immorality which is, in
brief and crude terms, not the law's business."
[33] The committee's recommendation on homosexual behaviour between
consenting adults in private was eventually accepted by the British
legislature in 1967 when the Sexual Offences Act (which applies in England
and Wales) was passed. This Act in essence decriminalised acts of sodomy
occurring between consenting adults in private: see further paragraph [41]
below. In 1980, with the passage of the Criminal Justice (Scotland) Act
1980, Scots Law was brought into line with that of England and Wales on the
point.
[34] Many writers have pointed out the striking similarity of the views
expressed by the Committee to those stated by John Stuart Mill in his essay
On Liberty, which was first published in 1859, in which he said24:
"The only purpose for which power can rightfully be exercised over any
member of a civilised community against his will is to prevent harm to
others. His own good either physical or moral is not a sufficient warrant.
He cannot rightfully be compelled to do or forbear because it will be
better for him to do so, because it will make him happier, because in the
opinions of others, to do so would be wise or even right."
[35] Professor H L A Hart, formerly professor of jurisprudence in the
University of Oxford, in the Harry Camp Lectures delivered at Stanford
University in 1962 and subsequently published as Law, Liberty and Morality
said25, that though he himself thought that
"there may be grounds justifying the legal coercion of the individual other
than the prevention of harm to others ... on the narrower issue relevant to
the enforcement of morality Mill [seemed] to [him] to be right."
[36] A good deal of Professor Hart's Harry Camp Lectures was devoted to a
critical examination of the arguments advanced by two great lawyers, Sir
James Fitzjames Stephen and Lord Devlin, who disagreed with the doctrine
expounded by Mill and who argued that the use of criminal law to enforce
morality is justified. Lord Devlin, in his lecture The Enforcement of
Morals, being the Maccabaean Lecture in Jurisprudence of the British
Academy, 1959, dealing with section 61 of the Wolfenden Committee's report,
which I have quoted above, said:
"...the suppression of vice is as much the law's business as the suppression
of subversive activities."
[37] In a later lecture, delivered in Chicago in 196426, Lord Devlin, as the
late Professor Julius Stone put it in Social Dimensions of Law and
Justice27,
"made it even clearer that he does not give current public morality an
overridingly paramount claim to legal enforcement. He is concerned rather
to insist (as against the philosophical standpoint deriving from Mill's
Essay on Liberty (1859)) that it is legitimate for the law to act, if
necessary by criminal penalties, against such action violating public
morality as is productive, in the given time and place, of specific grave
social evils. On this view the social interest in the general morals must
always compete with other interests."
[38] Professor Stone points out28 that in April 1965 Lord Devlin was one of
three Law Lords who joined in a petition that the main recommendation of
the Wolfenden Report be implemented. He was clearly convinced that
consensual homosexual activity between adult males, not occurring in
public, was not productive in England in the mid 1960's of specific grave
social evils, with the result that a penal provision upholding what could
be described as the public morality on the point was not justifiable.
[39] I now proceed to consider three judgments of the European Court of
Human Rights in which statutes in three European countries which penalised
male homosexual conduct in private between adults were considered. These
cases, to which Mr Stephen referred in his memorandum, are Dudgeon v United
Kingdom29 (a case from Northern Ireland to which the changes brought about
as a result of the Wolfenden Report had not been extended), Norris v
Ireland30 and Modinos v Cyprus31.
[40] In all three cases the European Court of Human Rights held that the
existence of penal provisions in the criminal law of the country in
question in so far as they related to acts committed in private by
consenting males constituted an interference with a person's right to
respect for his private life in contravention of Article 8 of the European
Convention on Human Rights, which reads as follows:
"1. Everyone shall have the right to respect for his private and family
life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise
of this right except such as is in accordance with the law and is necessary
in a democratic society in the interests of national security, public
safety or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others."
[41] Although the limitation clause contained in Article 8(12) differs in
some important respects from the wording of section 33(1) of the Interim
Constitution (and section 39(1) of the 1996 Constitution) and although, as
Chaskalson P pointed out in S v Makwanyane32, the jurisprudence of the
European Court is not necessarily a safe guide to what would be appropriate
under section 33 of the Interim Constitution (because of the "margin of
appreciation" allowed the national authorities by the European Court), it
is of some interest to see the reasons given by the majority in the
European Court in the Dudgeon case for its holding that interference with
the applicant's right under article 8 could not be justified . This matter
is addressed in paragraphs 42-62 which read as follows:
"42. In the Government's submission, the law of Northern Ireland relating to
homosexual acts does not give rise to a breach of Article 8, in that it is
justified by the terms of Article 8(2). This contention was disputed by
both the applicant and the Commission.
43. An interference with the exercise of an Article 8 right will not be
compatible with Article 8(2) unless it is `in accordance with the law', has
an aim or aims that is or are legitimate under that paragraph and is
`necessary in a democratic society' for the aforesaid aim or aims.
44. It has not been contested that the first of these three conditions was
met. As the Commission pointed out in paragraph 99 of its Report, the
interference is plainly `in accordance with the law' since it results from
the existence of certain provisions in the 1861 and 1885 Acts and the
common law.
45. It next falls to be determined whether the interference is aimed at `the
protection of ... morals' or `the protection of the rights and freedoms of
others', the two purposes relied on by the Government.
46. The 1861 and 1885 Acts were passed in order to enforce the then
prevailing conception of sexual morality. Originally they applied to
England and Wales, to all Ireland, then unpartitioned, and also, in the
case of the 1885 Act, to Scotland .... In recent years the scope of the
legislation has been restricted in England and Wales (with the 1967 Act)
and subsequently in Scotland (with the 1980 Act): with certain exceptions
it is no longer a criminal offence for two consenting males over 21 years
of age to commit homosexual acts in private. In Northern Ireland, in
contrast, the law has remained unchanged. The decision announced in July
1979 to take no further action in relation to the proposal to amend the
existing law was, the Court accepts, prompted by what the United Kingdom
Government judged to be the strength of feeling in Northern Ireland against
the proposed change, and in particular the strength of the view that it
would be seriously damaging to the moral fabric of Northern Irish society.
This being so, the general aim pursued by the legislation remains the
protection of morals in the sense of moral standards obtaining in Northern
Ireland.
47. Both the Commission and the Government took the view that, in so far as
the legislation seeks to safeguard young persons from undesirable and
harmful pressures and attentions, it is also aimed at `the protection of
the rights and freedoms of others". The Court recognises that one of the
purposes of the legislation is to afford safeguards for vulnerable members
of society, such as the young, against the consequences of homosexual
practices. However, it is somewhat artificial in this context to draw a
rigid distinction between `protection of the rights and freedoms of others'
and `protection of ... morals'. The latter may imply safeguarding the
moral ethos or moral standards of a society as a whole, but may also, as
the Government pointed out, cover protection of the moral interests and
welfare of a particular section of society, for example, schoolchildren.
Thus, `protection of the rights and freedoms of others', when meaning the
safeguarding of the moral interest and welfare of certain individuals or
classes of individuals who are in need of special protection for reasons
such as lack of maturity, mental disability or state of dependence, amounts
to one aspect of `protection of ... morals'. The Court will therefore take
account of the two aims on this basis.
48. As the Commission rightly observed in its Report, the cardinal issue
arising under Article 8 in this case is to what extent, if at all, the
maintenance in force of the legislation is `necessary in a democratic
society' for these aims.
49. There can be no denial that some degree of regulation of male homosexual
conduct, as indeed of other forms of sexual conduct, by means of the
criminal law can be justified as `necessary in a democratic society'. The
overall function served by the criminal law in this field is, in the words
of the Wolfenden report, `to preserve public order and decency [and] to
protect the citizen from what is offensive or injurious'. Furthermore,
this necessity for some degree of control may even extend to consensual
acts committed in private, notably where there is call (to quote the
Wolfenden Report once more)
to provide sufficient safeguards against exploitation and corruption of
others, particularly those who are specially vulnerable because they are
young, weak in body or mind, inexperienced, or in a state of special
physical, official or economic dependence.
In practice there is legislation on the matter in all the member States of
the Council of Europe, but what distinguishes the law in Northern Ireland
from that existing in the great majority of the member-States is that it
prohibits generally gross indecency between males and buggery whatever the
circumstances. It being accepted that some form of legislation is
`necessary' to protect particular sections of society as well as the moral
ethos of society as a whole, the question in the present case is whether
the contested provisions of the law of Northern Ireland and their
enforcement remain within the bounds of what, in a democratic society, may
be regarded as necessary in order to accomplish those aims.
50. A number of principles relevant to the assessment of the `necessity',
`in a democratic society', of a measure taken in furtherance of an aim that
is legitimate under the Convention have been stated by the Court in
previous judgments.
51. First, `necessary' in this context does not have the flexibility of such
expressions as `useful', `reasonable', or `desirable', but implies the
existence of a `pressing social need' for the interference in question.
52. In the second place, it is for the national authorities to make the
initial assessment of the pressing social need in each case; accordingly, a
margin of appreciation is left to them. However, their decision remains
subject to review by the Court.
As was illustrated by THE SUNDAY TIMES judgment, the scope of the margin of
appreciation is not identical in respect of each of the aims justifying
restrictions on a right. The Government inferred from the HANDYSIDE
judgment that the margin of appreciation will be more extensive where the
protection of morals is in issue. It is an indisputable fact, as the Court
stated in the HANDYSIDE judgment, that: `the view taken ... of the
requirements of morals varies from time to time and from place to place,
especially in our era', and that
By reason of their direct and continuous contact with the vital forces of
their countries, State authorities are in principle in a better position
than the international judge to give an opinion on the exact content of
those requirements.
However, not only the nature of the aim of the restriction but also the
nature of the activities involved will affect the scope of the margin of
appreciation. The present case concerns a most intimate aspect of private
life. Accordingly, there must exist particularly serious reasons before
interferences on the part of the public authorities can be legitimate for
the purposes of Article 8(2).
53. Finally, in Article 8 as in several other Articles of the Convention,
the notion of `necessity' is linked to that of a `democratic society'.
According to the Court's case-law, a restriction on a Convention right
cannot be regarded as `necessary in a democratic society' (two hallmarks of
which are tolerance and broadmindedness) unless, amongst other things, it
is proportionate to the legitimate aim pursued.
54. The Court's task is to determine on the basis of the aforestated
principles whether the reasons purporting to justify the `interference' in
question are relevant and sufficient under Article 8(2). The Court is not
concerned with making any value-judgment as to the morality of homosexual
relations between male adults.
55. It is convenient to begin by examining the reasons set out by the
Government in their arguments contesting the Commission's conclusion that
the penal prohibition of private consensual homosexual acts involving male
persons over 21 years of age is not justified under Article 8(2).
56. In the first place, the Government drew attention to what they described
as profound differences of attitude and public opinion between Northern
Ireland and Great Britain in relation to questions of morality. Northern
Ireland society was said to be more conservative and to place greater
emphasis on religious factors, as was illustrated by more restrictive laws
even in the field of heterosexual conduct.
Although the applicant qualified this account of the facts as grossly
exaggerated, the Court acknowledges that such differences do exist to a
certain extent and are a relevant factor. As the Government and the
Commission both emphasised, in assessing the requirements of the protection
of morals in Northern Ireland, the contested measure must be seen in the
context of Northern Ireland society.
The fact that similar measures are not considered necessary in other parts
of the United Kingdom or in other member-States of the Council of Europe
does not mean that they cannot be necessary in Northern Ireland. Where
there are disparate cultural communities residing within the same State, it
may well be that different requirements, both moral and social, will face
the governing authorities.
57. As the Government correctly submitted, it follows that the moral climate
in Northern Ireland in sexual matters, in particular as evidenced by the
opposition to the proposed legislative change, is one of the matters which
the national authorities may legitimately take into account in exercising
their discretion. There is, the Court accepts, a strong body of opposition
stemming from a genuine and sincere conviction shared by a large number of
responsible members of the Northern Ireland community that a change in the
law would be seriously damaging to the moral fabric of society. This
opposition reflects (as do in another way the recommendations made in 1977
by the Advisory Commission) a view both of the requirements of morals in
Northern Ireland and of the measures thought within the community to be
necessary to preserve prevailing moral standards.
Whether this point of view be right or wrong, and although it may be out of
line with current attitudes in other communities, its existence among an
important sector of Northern Ireland society is certainly relevant for the
purposes of Article 8(2).
58. The Government argued that this conclusion is further strengthened by
the special constitutional circumstances of Northern Ireland. In the
period between 1921 (when the Northern Ireland Parliament first met) and
1972 (when it last sat), legislation in the social field was regarded as
devolved matter within the exclusive domain of that Parliament. As a
result of the introduction of `direct rule' from Westminster, the United
Kingdom Government, it was said, had a special responsibility to take full
account of the wishes of the people of Northern Ireland before legislating
on such matters.
In the present circumstances of direct rule, the need for caution and for
sensitivity to public opinion in Northern Ireland is evident. However, the
Court does not consider it conclusive in assessing the `necessity', for the
purposes of the Convention, of maintaining the impugned legislation that
the decision was taken, not by the former Northern Ireland Government and
Parliament, but by the United Kingdom authorities during what they hope to
be an interim period of direct rule.
59. Without any doubt, faced with these various considerations, the United
Kingdom Government acted carefully and in good faith; what is more, they
made every effort to arrive at a balanced judgment between the differing
viewpoints before reaching the conclusion that such a substantial body of
opinion in Northern Ireland was opposed to a change in the law that no
further action should be taken. Nevertheless, this cannot of itself be
decisive as to the necessity for the interference with the applicant's
private life resulting from the measures being challenged. Notwithstanding
the margin of appreciation left to the national authorities, it is for the
Court to make the final evaluation whether the reasons it has found to be
relevant were sufficient in the circumstances, in particular whether the
interference complained of was proportionate to the social need claimed for
it.
60. The Convention right affected by the impugned legislation protects an
essentially private manifestation of the human personality.
As compared with the era when that legislation was enacted, there is now a
better understanding, and in consequence an increased tolerance, of
homosexual behaviour to the extent that in the great majority of the
member-States of the Council of Europe it is no longer considered to be
necessary or appropriate to treat homosexual practices of the kind now in
question as in themselves a matter to which the sanctions of the criminal
law should be applied; the Court cannot overlook the marked changes which
have occurred in this regard in the domestic law of the member-States. In
Northern Ireland itself, the authorities have refrained in recent years
from enforcing the law in respect of private homosexual acts between
consenting males over the age of 21 years capable of valid consent. No
evidence has been adduced to show that this has been injurious to moral
standards in Northern Ireland or that there has been any public demand for
stricter enforcement of the law.
It cannot be maintained in these circumstances that there is a `pressing
social need' to make such acts criminal offences, there being no sufficient
justification provided by the risk of harm to vulnerable sections of
society requiring protection or by the effects on the public. On the issue
of proportionality, the Court considers that such justifications as there
are for retaining the law in force unamended are outweighed by the
detrimental effects which the very existence of the legislative provisions
in question can have on the life of a person of homosexual orientation like
the applicant. Although members of the public who regard homosexuality as
immoral may be shocked, offended or disturbed by the commission by others
of private homosexual acts, this cannot on its own warrant the application
of penal sanctions when it is consenting adults alone who are involved.
61. Accordingly, the reasons given by the Government, although relevant, are
not sufficient to justify the maintenance in force of the impugned
legislation in so far as it has the general effect of criminalising private
homosexual relations between adult males capable of valid consent. In
particular, the moral attitudes towards male homosexuality in Northern
Ireland and the concern that any relaxation in the law would tend to erode
existing moral standards cannot, without more, warrant interfering with the
applicant's private life to such an extent. `Decriminalisation' does not
imply approval, and a fear that some sectors of the population might draw
misguided conclusions in this respect from reform of the legislation does
not afford a good ground for maintaining it in force with all its
unjustifiable features.
To sum up, the restriction imposed on Mr Dudgeon under Northern Ireland law,
by reason of its breadth and absolute character, is, quite apart from the
severity of the possible penalties provided for, disproportionate to the
aims sought to be achieved.
62. In the opinion of the Commission, the interference complained of by the
applicant can, in so far as he is prevented from having sexual relations
with young males under 21 years of age, be justified as necessary for the
protection of the rights of others. This conclusion was accepted and
adopted by the Government, but disputed by the applicant who submitted that
the age of consent for male homosexual relations should be the same as that
for heterosexual and female homosexual relations, that is, 17 years under
current Northern Ireland law.
The Court has already acknowledged the legitimate necessity in a democratic
society for some degree of control over homosexual conduct notably in order
to provide safeguards against the exploitation and corruption of those who
are specially vulnerable by reason, for example, of their youth. However,
it falls in the first instance to the national authorities to decide on the
appropriate safeguards of this kind required for the defence of morals in
their society and, in particular, to fix the age under which young people
should have the protection of the criminal law ...."
[42] The majority of the court found it unnecessary to examine the case
under Article 14 which reads as follows:
"The enjoyment of the rights and freedoms set forth in this Convention shall
be secured without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth and other status."
[43] Among the arguments advanced by Judge Zekia in his dissenting judgment
in support of the view that Article 8(1) of the European Convention on
Human Rights had not been breached by the British Government were the
following:
"1. Christian and Moslem religions are all united in the condemnation of
homosexual relations and of sodomy. Moral conceptions to a great degree
are rooted in religious beliefs.
2. All civilised countries until recent years penalised sodomy and buggery
and similar unnatural practices.
In Cyprus, criminal provisions similar to those embodied in the Acts of 1861
and 1885 in the North of Ireland are in force. Section 171 of the Cyprus
Criminal Code, which was enacted in 1929, reads
Any person who
a) has carnal knowledge of any person against the order of nature, or
b) permits a male person to have carnal knowledge of him against the order
of nature
is guilty of a felony and is liable to imprisonment for five years.
Under section 173 anyone who attempts to commit such an offence is liable to
three years' imprisonment.
While on the one hand I may be thought biased for being a Cypriot judge, on
the other hand I may be considered to be in a better position in
forecasting the public outcry and the turmoil which would ensue if such
laws are repealed or amended in favour of homosexuals either in Cyprus or
in Northern Ireland. Both countries are religious-minded and adhere to
moral standards which are centuries old.
3. While considering the respect due to the private life of a homosexual
under Article 8(1), we must not forget and must bear in mind that respect
is also due to the people holding the opposite view, especially in a
country populated by a great majority of such people who are completely
against unnatural immoral practices. Surely the majority in a democratic
society are also entitled under Articles 8, 9 and 10 of the Convention and
Article 2 of Protocol No 1 to respect for their religious and moral beliefs
and entitled to teach and bring up their children consistently with their
own religious and philosophical convictions.
A democratic society is governed by the rule of the majority. It seems to
me somewhat odd and perplexing, in considering the necessity of respect for
one's private life, to underestimate the necessity of keeping a law in
force for the protection of morals held in high esteem by the majority of
people.
A change of the law so as to legalise homosexual activities in private by
adults is very likely to cause many disturbances in the country in
question. The respondent Government were justified in finding it necessary
to keep the relevant Acts on the statute book for the protection of morals
as well as for the preservation of public peace."
[44] While I think that I can take judicial notice of the fact that there
may well be people in this country who believe strongly that acts of sodomy
between adult male persons are not only immoral but should be penalised by
criminal sanctions, there is no basis for thinking, however, that a
decision upholding the view that sodomy occurring between consenting adult
males should not be criminalised is likely to lead to unrest in this
country so that its continued criminalisation may be defended on the ground
that it is necessary to preserve the public peace - as Judge Zekia said was
the case in Northern Ireland33.
[45] It may, however, be accepted that many of those who believe that
homosexual activity between adult males is immoral and should be proscribed
by criminal sanction may be occasioned distress by the thought that others
are engaging in such acts, albeit in private. Is that a basis for
justifying the continued criminalisation of such behaviour? Professor Hart
dealt with the point as follows in his lectures on Law, Liberty and
Morality34:
"[A]ny denial of the truths of the Christian religion was once punished in
England as blasphemy, whereas now it is only punishable if it is made in an
offensive or insulting manner, likely to cause a breach of the peace.
Those who support this modern form of the punishment of blasphemy are not,
of course, committed to belief in the religion of those whose feelings are
thereby protected from insult. They may indeed quite consistently oppose
any attempt to enforce conformity with that or any religion.
In sexual matters a similar line generally divides the punishment of
immorality from the punishment of indecency. The Romans distinguished the
province of the Censor, concerned with morals, from that of the Aedile,
concerned with public decency, but in modern times perhaps insufficient
attention has been give to this distinction. Indeed, Lord Simonds in his
speech in the House of Lords in Shaw's case [Shaw v DPP [1962] AC 220] went
out of his way to profess indifference to it.
It matters little what label is given to the offending act. To one of your
Lordships it may appear an affront to public decency, to another
considering that it may succeed in its obvious intention of provoking
libidinous desires it will seem a corruption of public morals.
But the distinction is in fact both clear and important. Sexual intercourse
between husband and wife is not immoral, but if it takes place in public it
is an affront to public decency. Homosexual intercourse between consenting
adults in private is immoral according to conventional morality, but not an
affront to public decency, though it would be both if it took place in
public. But the fact that the same act, if done in public, could be
regarded both as immoral and an affront to public decency must not blind us
to the difference between these two aspects of conduct and to the different
principles on which the justification of their punishment must rest. The
recent English law relating to prostitution attends to this difference. It
has not made prostitution a crime but punishes its public manifestation in
order to protect the ordinary citizen, who is an unwilling witness of it in
the streets, from something offensive.
It may no doubt be objected that too much has been made in this discussion
of the distinction between what is done in public and what is done in
private. For offence to feelings, it may be said, is given not only when
immoral activities or their commercial preliminaries are thrust upon
unwilling eyewitnesses, but also when those who strongly condemn certain
sexual practices as immoral learn that others indulged in them in private.
Because this is so, it is pointless to attend to the distinction between
what is done privately and what is done in public; and if we do not attend
to it, then the policies of punishing men for mere immorality and punishing
them for conduct offensive to the feelings of others, though conceptually
distinct, would not differ in practice. All conduct strongly condemned as
immoral would then be punishable.
It is important not to confuse this argument with the thesis, which I shall
later examine, that the preservation of an existing social morality is
itself a value justifying the use of coercion. The present argument
invokes in support of the legal enforcement of morality not the values of
morality but Mill's own principle that coercion may be justifiably used to
prevent harm to others. Various objections may be made to this use of the
principle. It may be said that the distress occasioned by the bare thought
that others are offending in private against morality cannot constitute
`harm', except in a few neurotic or hypersensitive persons who are
literally `made ill' by this thought. Others may admit that such distress
is harm, even in the case of normal persons, but argue that it is too
slight to outweigh the great misery caused by the legal enforcement of
sexual morality.
Although these objections are not without force, they are of subsidiary
importance. The fundamental objection surely is that a right to be
protected from the distress which is inseparable from the bare knowledge
that others are acting in ways you think wrong, cannot be acknowledged by
anyone who recognises individual liberty as a value. For the extension of
the utilitarian principle that coercion may be used to protect men from
harm, so as to include their protection from this form of distress, cannot
stop there. If distress incident to the belief that others are doing wrong
is harm, so also is the distress incident to the belief that others are
doing what you do not want them to do. To punish people for causing this
form of distress would be tantamount to punishing them simply because
others object to what they do; and the only liberty that could coexist with
this extension of the utilitarian principle is liberty to do those things
to which no one seriously objects. Such liberty plainly is quite nugatory.
Recognition of individual liberty as a value involves, as a minimum,
acceptance of the principle that the individual may do what he wants, even
if others are distressed when they learn what it is that he does - unless,
of course, there are other good grounds for forbidding it. No social order
which accords to individual liberty any value could also accord the right
to be protected from distress thus occasioned.
Protection from shock or offence to feelings caused by some public display
is, as most legal systems recognise, another matter. The distinction may
sometimes be a fine one. It is so, in those cases such as the desecration
of venerated objects or ceremonies where there would be no shock or offence
to feeling, if those on whom the public display is obtruded had not
subscribed to certain religious or moral beliefs. Nonetheless the use of
punishment to protect those made vulnerable to the public display by their
own beliefs leaves the offender at liberty to do the same thing in private,
if he can. It is not tantamount to punishing men simply because others
object to what they do."
[46] In my opinion, in view of the high importance accorded to such values
as liberty and tolerance under our constitution, it must be accepted that
the arguments set forth in Judge Zekia's dissenting opinion cannot be
accepted as valid under our constitution for the reasons stated by
Professor Hart in the passage I have cited.
[47] In his memorandum Mr Stephen relied very strongly on a recent judgment
given in the Ontario Court of Appeal by Abella JA in R v M (C) [1995] 30
CRR (2d) 112. In this case the accused was charged with contravening
section 159 of the Canadian Criminal Code, RSC 185, c. C-46, which
prohibited anal intercourse unless engaged in in private "between husband
and wife or any two persons each of whom is eighteen years of age or more,
both of whom consent to the act". It was alleged that the accused had
engaged in acts of anal intercourse with his fiancee's niece who was under
18 years at the time. The case was thus concerned with heterosexual anal
intercourse with a girl under the age of 18 years, that being the age of
consent for anal intercourse, although the age of consent for other sexual
activity in Canada, including vaginal intercourse, was 14 years. Abella JA
held that section 159 of the Criminal Code imposed a burden based on sexual
orientation and therefore was a discriminatory provision which infringed
the guarantee of equality contained in section 15 of the Canadian Charter
of Rights and Freedoms. She held further that this denial of equality
could not be justified under section 1 of the Charter, which guarantees the
rights and freedoms set out in the Charter "subject only to such reasonable
limits prescribed by law as can be demonstrably justified in a free and
democratic society".
[48] The two other members of the Court, Goodman and Catzman JJA, held that
section 159 infringed section 15 of the Charter not because it imposed a
burden based on sexual orientation but one based on age: they agreed,
however, with Abella JA that section 159 could not be justified under
section 1 of the Charter (corresponding, in broad terms, to section 33(1)
of the Interim Constitution).
[49] I have pointed out that R v M (C), supra, was in fact concerned with
alleged acts of heterosexual sodomy and the essential point raised was
whether the age of consent in respect of such acts could be placed higher
than the age of consent for other sexual activity. In this case, as has
been stated, no question arises as to the age of consent in respect of
homosexual sodomy with the result that the actual holding in R v M (C),
supra, is not directly relevant. Abella JA's judgment is significant,
however, as Mr Stephen submits, because she addressed the issue on the
basis of the right to equality (which is the antithesis of discrimination)
and not the right to privacy. It therefore affords some support for the
view expressed above that the legal rules subjecting acts of anal
intercourse occurring between consenting adults to criminal sanctions
should be held to be unconstitutional in our law on the basis that they
infringe the right to equality before the law.
[50] I turn now to consider the legal position in the United States of
America. The leading case on the point, to which Mr Stephen referred in
his memorandum, is Bowers v Hardwick 478 US 186 (1986) in which the United
States Supreme Court upheld Georgia's sodomy statute, which defined sodomy
as "committing or submitting to any sexual act involving the sex organs of
one person and the mouth or anus of another". The case was an appeal from
a judgment of the Court of Appeals for the 11th Circuit which reversed the
judgment of a district court which had upheld the statute. The Court of
Appeals held that earlier decisions of the Supreme Court had construed the
Constitution as having conferred a right of privacy that extends to
homosexual sodomy. White J, who wrote the opinion of the Court, said that
the Court of Appeals had erred on this point. His judgment was concurred
in by four other Justices. Four Justices dissented. In his judgment White
J said (at 190-6):
"[W]e think it evident that none of the rights announced in [such cases as
Pierce v Society of Sisters 268 US 510 (1925), Skinner v Oklahoma 316 US
535 (1942), Griswold v Connecticut 381 US 479 (1965) and Roe v Wade 410 US
113 (1973)] bears any resemblance to the claimed constitutional right of
homosexuals to engage in acts of sodomy that is asserted in this case. No
connection between family, marriage, or procreation on the one hand and
homosexual activity on the other has been demonstrated, either by the Court
of Appeals or by respondent. Moreover, any claim that these cases
nevertheless stand for the proposition that any kind of private sexual
conduct between consenting adults is constitutionally insulated from state
proscription is unsupportable....
Precedent aside, however, respondent would have us announce, as the Court
of Appeals did, a fundamental right to engage in homosexual sodomy. This
we are quite unwilling to do....
Striving to assure itself and the public that announcing rights not
readily identifiable in the Constitution's text involves much more than the
imposition of the Justices' own choice of values on the States and the
Federal Government, the Court has sought to identify the nature of the
rights qualifying for heightened judicial protection. In Palko v
Connecticut 302 US 319 (1937) it was said that this category includes those
fundamental liberties that are `implicit in the concept of ordered
liberty', such that `neither liberty nor justice would exist if [they] were
sacrificed.' A different description of fundamental liberties appeared in
Moore v East Cleveland 431 US 494 (1977) (opinion of Powell J), where they
are characterised as those liberties that are `deeply rooted in this
Nation's history and tradition.' See also [Griswold].
It is obvious to us that neither of these formulations would extend a
fundamental right to homosexuals to engage in acts of consensual sodomy.
Proscriptions against that conduct have ancient roots.... Sodomy was a
criminal offense at common law and was forbidden by the laws of the
original 13 states when they ratified the Bill of Rights. In 1868, when
the Fourteenth Amendment was ratified, all but 5 of the 37 States of the
Union had criminal sodomy laws. In fact, until 1961, all 50 States
outlawed sodomy, and today, 25 States and the District of Columbia continue
to provide criminal penalties for sodomy performed in private and between
consenting adults. Against this background, to claim that a right to
engage in such conduct is `deeply rooted in this Nation's history and
tradition' or `implicit in the concept of ordered liberty' is, at best,
facetious.
Nor are we inclined to take a more expansive view of our authority to
discover new fundamental rights imbedded in the Due Process Clause. The
Court is most vulnerable and comes nearest to illegitimacy when it deals
with judge-made constitutional law having little or no cognizable roots in
the language or design of the Constitution. That this is so is painfully
demonstrated by the face-off between the Executive and the Court in the
1930's, which resulted in the repudiation on much of the substantive gloss
that the Court had placed on the Due Process Clause of the Fifth and
Fourteenth Amendments. There should be, therefore, great resistance to
expanding the substantive reach of those Clauses, particularly if it
requires redefining the category of rights deemed to be fundamental.
Otherwise, the Judiciary necessarily takes to itself further authority to
govern the country without express constitutional authority. The claimed
right pressed on us today falls far short of overcoming this resistance.
Respondent, however, asserts that the result should be different where the
homosexual conduct occurs in the privacy of the home. He relies on Stanley
v Georgia 394 US 557 (1969), where the Court held that the First Amendment
prevents conviction for possessing and reading obscene material in the
privacy of the home....
Stanley did not protect conduct that would not have been protected outside
the home, and it partially prevented the enforcement of state obscenity
laws; but the decision was firmly grounded in the First Amendment. The
right pressed upon us here has no similar support in the text of the
Constitution, and it does not qualify for recognition under the prevailing
principles for construing the Fourteenth Amendment. Its limits are also
difficult to discern. Plainly enough, otherwise illegal conduct is not
always immunized whenever it occurs in the home. Victimless crimes, such
as the possession and use of illegal drugs, do not escape the law where
they are committed at home. Stanley itself recognized that its holdings
offered no protection for the possession in the home of drugs, firearms, or
stolen goods.... And if respondent's submission is limited to the
voluntary sexual conduct between consenting adults, it would be difficult,
except by fiat, to limit the claimed right to homosexual conduct while
leaving exposed to prosecution adultery, incest, and other sexual crimes
even though they are committed in the home. We are unwilling to start down
that road.
Even if the conduct at issue here is not a fundamental right, respondent
asserts that there must be a rational basis for the law and that there is
none in this case other than the presumed belief of a majority of the
electorate in Georgia that homosexual sodomy is immoral and unacceptable.
This is said to be an inadequate rationale to support the law. The law,
however, is constantly based on notions of morality, and if all laws
representing essentially moral choices are to be invalidated under the Due
Process Clause, the courts will be very busy indeed. Even respondent makes
no such claim, but insists that majority sentiments about the morality of
homosexuality should be declared inadequate. We do not agree, and are
unpersuaded that the sodomy laws of some 25 States should be invalidated on
this basis.
He added in a footnote that the respondent did not defend "the judgment [of
the Court of Appeals] based on the Ninth Amendment, the Equal Protection
clause or the Eighth Amendment". (The Ninth Amendment provides that "[t]he
enumeration in the Constitution of certain rights shall not be construed to
deny or disparage others retained by the people". The Eighth Amendment
renders unconstitutional the infliction of "cruel and unusual punishment".)
In his concurring judgment Burger CJ said (at 196-7):
" I join the Court's opinion, but I write separately to underscore my view
that in constitutional terms there is no such thing as a fundamental right
to commit homosexual sodomy.
As the Court notes, the proscriptions against sodomy have very `ancient
roots'. Decisions of individuals relating to homosexual conduct have been
subject to state intervention throughout the history of Western
Civilization. Condemnation of those practices is firmly rooted in
Judeo-Christian moral and ethical standards. [Blackstone] described `the
infamous crime against nature' as an offense of `deeper malignity' than
rape, an heinous act `the very mention of which is a disgrace to human
nature', and `a crime not fit to be named'.
[To] hold that the act of homosexual sodomy is somehow protected as a
fundamental right would be to cast aside millennia of teaching.
This is essentially not a question of personal `preferences' but rather of
the legislative authority of the State. I find nothing in the Constitution
depriving a State of the power to enact the statute challenged here."
Powell J also wrote a separate concurring judgment which contained the
following (at 197):
" [I] agree with the Court that there is no fundamental right - ie no
substantive right under the Due Process Clause - such as that claimed by
respondent, and found to exist by the Court of Appeals. This is not to
suggest, however, that respondent may not be protected by the Eighth
Amendment of the Constitution. The Georgia statute at issue in this case
authorizes a court to imprison a person for up to 20 years for a single
private, consensual act of sodomy. In my view, a prison sentence for such
conduct - certainly a sentence of long duration - would create a serious
Eight Amendment issue.... "
Blackmun J wrote a dissenting judgment concurred in by Brennan and Marshall
JJ and a separate dissenting judgment was written by Stevens J with whom
Brennan and Marshall JJ also concurred.
Blackmun J's judgment (the reasoning of which Mr Stephen submits I should
prefer to that contained in the majority judgment) contains the following
(at 199; 204; 205; 206; 207; 208-9; 210; 211; 212-3 and 214):
" This case is no more about `a fundamental right to engage in homosexual
sodomy,' as the Court purports to declare, than Stanley v Georgia, 394 U.S.
557 (1969), was about a fundamental right to watch obscene movies, or Katz
v United States, 398 U.S. 347 (1967), was about a fundamental right to
place interstate bets from a telephone booth. Rather, this case is about
`the most comprehensive of rights and the right most valued by civilized
men', namely, `the right to be let alone.' Olmstead v United States, 277
U.S. 438, 478 (1928) (Brandeis, J., dissenting).
The statute at issue denies individuals the right to decide for themselves
whether to engage in particular forms of private, consensual sexual
activity. The Court concludes that [the statute] is valid essentially
because `the laws of ... many States ... still make such conduct illegal
and have done so for a very long time.' But the fact that the moral
judgments expressed by statutes like [this one] may be `natural and
familiar ... ought not to conclude our judgment upon the question whether
statutes embodying them conflict with the Constitution of the United
States.' [Roe... quoting Lochner v New York, 198 US 45 (1905) (Holmes J,
dissenting)....
The Court concludes today that none of our prior cases dealing with
various decisions that individuals are entitled to make free of
governmental interference `bears any resemblance to the claimed
constitutional right of homosexuals to engage in acts of sodomy that is
asserted in this case.' While it is true that these cases may be
characterised by their connection to protection of the family, see Roberts
v United States Jaycees, 468 U.S. 609 (1984), the Court's conclusion that
they extend no further than this boundary ignores the warning in Moore v
East Cleveland, 431 U.S. 494 (1977) against `clos[ing] our eyes to the
basic reasons why certain rights associated with the family have been
accorded shelter under the Fourteenth Amendment's Due Process Clause.' We
protect those rights not because they contribute in some direct way and
material way to the general public welfare, but because they form so
central a part of an individual's life....
Only the most willful blindness could obscure the fact that sexual
intimacy is `a sensitive, key relationship of human existence, central to
family life, community welfare, and the development of human personality,'
Paris Adult Theatre I v Slaton, 413 U.S. 49, 63 (1973).
The fact that individuals define themselves in a significant way through
their intimate sexual relationships with others suggests, in a Nation as
diverse as ours, that there may be many `right' ways of conducting those
relationships, and that much of the richness of a relationship will come
from the freedom an individual has to choose the form and nature of these
intensely personal bonds....
The Court claims that its decision today merely refuses to recognize a
fundamental right to engage in homosexual sodomy; what the Court really has
refused to recognize is the fundamental interest all individuals have in
controlling the nature of their intimate associations with others.
The behaviour for which Hardwick faces prosecution occurred in his own
home, a place to which the Fourth Amendment attaches special
significance....
The Court's interpretation of the pivotal case of Stanley v Georgia is
entirely unconvincing. Stanley held that Georgia's undoubted power to
punish the public distribution of constitutionally unprotected, obscene
material did not permit the State to punish the private possession of such
material. According to the majority here, Stanley relied entirely on the
First Amendment, and thus, it is claimed, sheds no light on cases not
involving printed materials. But that is not what Stanley said. Rather,
the Stanley Court anchored its holding in the Fourth Amendment's special
protection for the individual in his home....
The Court's failure to comprehend the magnitude of the liberty interest at
stake in this case leads it to slight the question whether petitioner, on
behalf of the State, has justified Georgia's infringement on these
interests. I believe that neither of the two general justifications for
[the statute] that petitioner has advanced warrants dismissing respondent's
challenge for failure to state a claim.
First, petitioner asserts that the acts made criminal by the statute may
have serious adverse consequences for `the general public health and
welfare', such as spreading communicable disease or fostering other
criminal activity.... Inasmuch as this case was dismissed by the District
Court on the pleadings, it is not surprising that the record before us is
barren of any evidence to support petitioner's claim. In light of the
state of the record, I see no justification for the Court's attempt to
equate the private, consensual sexual activity at issue here with the
`possession in the home of drugs, firearms, or stolen goods', to which
Stanley refused to extend its protection....
The core of petitioner's defence of [the statute], however, is that
respondent and others who engage in the conduct prohibited by [it]
interfere with Georgia's exercise of the ``right of the Nation and of the
State to maintain a decent society,' ' Paris Adult Theatre I v Slaton, 413
U.S., at 59-60, quoting Jacobellis v Ohio, 378 U.S. 184, 199 (1964) (Warren
CJ, dissenting)....
The assertion that `traditional Judeo-Christian values proscribe' the
conduct involved cannot provide an adequate justification for [the
statute]. That certain, but by no means all, religious groups condemn the
behaviour at issue gives the State no license to impose their judgments on
the entire citizenry. The legitimacy of secular legislation depends
instead on whether the State can advance some justification for its law
beyond its conformity to religious doctrine....
Certainly, some private behaviour can affect the fabric of society as a
whole.... Statutes banning public sexual activity are entirely consistent
with protecting the individual's liberty interest in decisions concerning
sexual relations: the same recognition that those decisions are intensely
private which justifies protecting them from governmental interference can
justify protecting individuals from unwilling exposure to the sexual
activities of others. But the mere fact that intimate behaviour may be
punished when it takes place in public cannot dictate how States can
regulate intimate behaviour that occurs in intimate places....
I can only hope that ... the Court soon will reconsider its analysis and
conclude that depriving individuals of the right to choose for themselves
how to conduct their intimate relationships poses a far greater threat to
the values most deeply rooted in our Nation's history than tolerance of
nonconformity could ever do. Because I think the Court today betrays those
values, I dissent."
[51] Though the majority judgment is still formally binding in the United
States as authority to be cited in a lower court in support of the
proposition that sodomy statutes are not unconstitutional its status as a
persuasive authority outside the United States has been substantially
undermined by two factors.
[52] Firstly, it will be recalled that it was a case where the Justices who
sat split 5-4 as to the result. One of the five was Justice Powell, who
was what is known in America as a "swing vote", who had provided the fifth
and conclusive vote, on one side or the other in many cases where four of
his colleagues went one way and the other four the other. In a lecture
given at New York University after he retired Justice Powell said that the
most serious mistake he had made while on the court was in supplying the
crucial fifth vote in Bowers v Hardwick and that he had since changed his
mind and believed the decision wrong35.
[53] Secondly, the Supreme Court in a later case, Romer et al v Evans et al,
116 S.Ct. 1620 134 L Ed 2d 855 (1996), essentially rejected the rationale
given by the majority in Bowers v Hardwick, supra, although they did not
refer thereto. Romer et al v Evans et al concerned an attack on an
amendment, "Amendment 2", to the State Constitution of Colorado, adopted by
statewide referendum, which precluded all legislative, executive or
judicial action at any level of state or local government designed to
protect the status of persons based on their "homosexual, lesbian or
bisexual orientation, conduct, practices or relationships". The
respondents applied in the District Court for the City and County of Denver
for an order declaring Amendment 2 invalid and enjoining its enforcement.
The trial court granted the relief sought and its order was sustained on
appeal by the Supreme Court of Colorado. The United States Supreme Court
affirmed the judgment but on a rationale different from that adopted by the
State Supreme Court. Kennedy J delivered the opinion of the court in which
Stevens, O'Connor, Souter, Ginsberg and Breyer JJ joined. Scalia J filed a
dissenting opinion in which Rehnquist CJ and Thomas J joined. One of the
grounds on which the majority held Amendment 2 to be unconstitutional was
that it did not bear a rational relationship to a legitimate governmental
purpose. As I have said, no mention was made in the opinion of the court
of Bowers v Hardwick. In his dissenting opinion Scalia J did mention
Bowers v Hardwick. He contended that if it was unassailable (as he thought
it was) then Amendment 2 could not be held to be unconstitutional. He
said36:
"I turn next to whether there was a legitimate rational basis for the
substance of the constitutional amendment - for the prohibition of special
protection for homosexuals.... It is unsurprising that the Court avoids
discussion of this question, since the answer is so obviously yes. The
case most relevant to the issue before us today is not even mentioned in
the Court's opinion: In Bowers v Hardwick, 478 U.S. 186 (1986), we held
that the Constitution does not prohibit what virtually all States had done
from the founding of the Republic until very recent years - making
homosexual conduct a crime. That holding is unassailable, except by those
who think that the Constitution changes to suit current fashions. But in
any event it is a given in the present case: Respondents' briefs did not
urge overruling Bowers, and at oral argument respondents' counsel expressly
disavowed any intent to seek such overruling.... If it is constitutionally
permissible for a State to make homosexual conduct criminal, surely it is
constitutionally permissible for a State to enact other laws merely
disfavoring homosexual conduct. (As the Court of Appeals for the District
of Columbia Circuit has aptly put it: `If the Court [in Bowers] was
unwilling to object to state laws that criminalize the behaviour that
defines the class, it is hardly open...to conclude that state sponsored
discrimination against the class is invidious. After all, there can hardly
be more palpable discrimination against a class than making the conduct
that defines the class criminal." Padula v Webster, 822 F.2d 97, 103
(1987).) And a fortiori it is constitutionally permissible for a State to
adopt a provision not even disfavouring homosexual conduct, but merely
prohibiting all levels of state government from bestowing special
protections upon homosexual conduct."
He then pointed out that the respondents ("who, unlike the Court, cannot
afford the luxury of ignoring inconvenient precedent") had sought to
distinguish Bowers v Hardwick on a ground with which he did not agree and
which is not relevant in the present context.
[54] The contrast between the ratio decidendi of Bowers v Hardwick and that
of Romer v Evans was summarised as follows by Professor Thomas C Grey of
Stanford Law School in his article "Bowers v Hardwick Diminished", which
was published in (1997) 68 University of Colorado Law Review 373:
"The Court in Hardwick had said that it was rational (hence constitutional)
to treat private homosexual acts between consenting adults as crimes - this
on the basis of `majority sentiments' unsupported by any argument. Romer
said that it was irrational, hence unconstitutional, for a state to tie its
hands against giving explicit antidiscrimination protection to gay men,
lesbians and bisexuals.
It is hard to square those two positions, as Justice Scalia said so loud
and clear in his Romer dissent. Scalia's dissent made even louder the
silence at the heart of the Romer majority opinion - its failure so much as
to mention Hardwick."
Later in his article Professor Grey said37:
"The Court's adoption of the `invidious because irrational' approach exposed
it to the strong `greater excludes lesser' logic of Justice Scalia's
invocation of Hardwick by way of Padula. What was the rationale for
withholding all explicit antidiscrimination protection from gays and
lesbians? It was precisely the same rationale that justified the sodomy
law in Hardwick, so Justice Scalia said. There Georgia had used a criminal
law to denounce conduct its people judged (for their own sufficient though
never-articulated reasons) to be immoral. Here Colorado, which had
repealed its sodomy law, simply wanted the public imprimatur on homosexual
acts and relationships that was implied by explicit inclusion of sexual
preference alongside race, religion and gender in the official categories
of prohibited forms of discrimination. If Hardwick was still good law, the
argument goes, Amendment 2 survived a fortiori against the argument the
Court had made.
[T]his argument seams unanswerable in its own terms, a conclusion that is
fortified by the Court's failure to make any attempt to answer it. If no
fallacy appears in the logic of the argument, the Court's silence seems
implicitly to deny the premise - that Hardwick was still good law. The
precise aspect of Hardwick in question was its contemptuously offhand
holding that the sodomy law survived the rational basis test without the
need for any rational argument to back it up.
Of course, there remains the fact that the court was not yet willing to
make explicit the rejection of Hardwick. That unwillingness can readily be
explained, if not entirely excused, by [a] mixture of prudential factors
(both conventionally judicial and more overtly political). A court is
generally supposed to say what it is doing and why, but we know that courts
do not always live up to this ideal, and sometimes with good reason. As a
result Hardwick remains formally on the books, `still good law' only in the
sense that it is available to be cited as binding precedent in a lower
court against anyone who actually attempts a direct privacy attack on a
sodomy statute. But outside that specific and increasingly peripheral
context, it appears that its rational basis holding has, without much
ceremony, been ushered off the constitutional stage."
Professor Grey also said38 that "the lawyers of Colorado implicitly
recognised the inadequacy of Hardwick" because of "its contemptuously
offhand holding that the sodomy law survived the rational basis test
without the need for any rational argument to back it up". He pointed out
that
"[i]n the litigation of Romer, they brought in as an expert witness the
distinguished Roman Catholic natural law philosopher and theologian John
Finnis to attempt to articulate a basis in natural reason, apart from
biblical condemnation and Christian theology, why homosexual relations
might be treated by the law as immoral and hence not to be sanctified by
antidiscrimination protection. On Finnis's very striking account, the
ground for condemning homosexual relations also renders immoral all
orgasmic sexual expression that is not both sanctified by marriage and
`open to' procreation - including masturbation and oral intercourse within
marriage. Finnis attempts to explain how the marital relations of sterile
couples escape condemnation under this principle, but I find his reasoning
impossible to follow. Hence the `Finnis theory' renders most adult
Americans persistent and unrepentant violators of the moral law in sexual
matters. See John M Finnis Law, Morality and `Sexual Orientation' 69 NOTRE
DAME L REV 1049 (1994). The indefensibility of this accomplished
philosopher's best effort to justify in secular terms the traditional
condemnation of homosexuality surely strengthens the case against
Hardwick."
[55] There is a further reason why the majority judgment in Bowers v
Hardwick is not of much assistance in this country. In considering whether
legislation is unconstitutional or not courts in the United States do not
adopt the "two stage" approach adopted under our Constitution
"in which a broad rather than a narrow interpretation is given to the
fundamental rights enshrined in Chapter 3 [of the Interim Constitution],
and limitations have to be justified through the application of sec 33 [of
the Interim Constitution]. In this it differs from the Constitution of the
United States , which does not contain a limitation clause, as a result of
which courts in that country have been obliged to find limits to
constitutional rights through a narrow interpretation of the rights
themselves. Although the `two-stage' approach may often produce the same
result as the `one-stage' approach, this will not always be the case.39"
[56] As is apparent from the extracts from White J's judgment which I have
quoted above part at least of the reasoning of the court appears to rest on
what the majority regarded as "the language or design of the Constitution"
and the historical fact that sodomy was a criminal offence in the laws of
all the original 13 states when the Bill of Rights was ratified and in all
but five of the 37 states when the Fourteenth Amendment was ratified. As
has been seen, Burger CJ also was strongly influenced by the "very `ancient
roots'" of the proscriptions against sodomy in coming to the conclusion
that "to hold that the act of homosexual sodomy is somehow protected as a
fundamental right would be cast aside millenia of moral teaching".
[57] Those historical facts, though they may be relevant if one is searching
for the original intent of the ratifiers of the Bill of Rights and the
Fourteenth Amendment, have little or no bearing in construing section 8(2)
of our Interim Constitution and section 9(3) of the 1996 Constitution
because our constitutional provisions specifically include sexual
orientation among the grounds on which unfair discrimination may not take
place.
[58] The results of the search for a rational basis for discrimination
against male homosexuals on a matter falling in the sphere of sexual
intimacy which has taken place in the United States are relevant in regard
to the question as to whether what appears to be an infringement of section
8 of the Interim Constitution can be justified under section 33.
[59] As is clear from what I have said above no rational basis for such
discrimination appears to have been found in the United States and the
persuasive authority of Bowers v Hardwick has been substantially
undermined.
[60] In Canada there is no criminal proscription of homosexual sexual
activity between consenting male adults: the main judicial decision turns
on a question relating to the age of consent which is not relevant in this
case. The European Court of Human Rights has held in three cases that the
criminalisation by a member State of sodomy between male adults above the
age of consent is a breach of article 8 of the European Convention on Human
Rights even in the case of countries, such as the Irish Republic and Cyprus
and part of a country such as Northern Ireland, where a large majority of
the community appears to have strongly held religious convictions in
respect of such conduct.
[61] It is true that the decisions of the European Court of Human Rights
have been based on the right to privacy whereas I prefer, for the reasons I
have given, to base the decision under our Constitution on the right to
equality before the law, but that cannot affect the fact that there is a
clear consensus of opinion in Europe that the criminal proscription of
sodomy occurring between consenting male adults cannot be justified. Even
Lord Devlin, the most notable protagonist in this century of the view
upheld in Bowers v Hardwick that the criminal law may be used to uphold
majority sentiment on morality, at least in certain circumstances, was of
the view that sexual activity occurring between consenting male adults, not
in public, should be decriminalised.
[62] It remains for me to consider the basis advanced by the magistrate in
support of the conviction. He relied, it will be recalled on the dictum of
Ackermann J in S v H 1995 (1) SA 120 (C)40 where the learned judge said:
"The proscription of private sodomy between consenting adults undergoing
imprisonment could well serve a legitimate societal interest."
He continued, however:
"Such proscription would, however, not be on the basis of discrimination
against male homosexual acts, but because the situation in prison might
necessitate the proscription of all sexual relationships or contact
involving prisoners, whether homosexual or heterosexual. The proscription
would be directed against the sexual activity; not against the gender or
sexual preference of the parties indulging in the activity." (My emphasis)
[63] It is clear, in my view, that what the learned judge had in mind was
not some sort of attenuated survival of the criminal offence of sodomy,
where committed by consenting
adults in prison, but a possible offence created by statute criminalising
"sexual relationships or contact involving prisoners whether homosexual or
heterosexual". At the moment, as I understand it, heterosexual sexual
relationships between prisoners are not rendered criminal by any law. The
survival of sodomy as an offence in the prison context between consenting
adult male prisoners would be unconstitutional because it would still
involve unfair discrimination on the ground of sexual orientation which
could not, in my view, be justified. It follows that the magistrate's
basis for upholding the conviction must be rejected.
[64] In the circumstances I am satisfied that on the facts stated by him in
his plea explanation which were accepted by the prosecutor, the accused
should not have been convicted.
In the result the following order is made:
"The conviction and sentence are set aside."
..............................................
I G FARLAM
NGCOBO J: I concur.
.............................................
S S NGCOBO
1According to Gibbon The Decline and Fall of the Roman Empire, chapter 44,
"by this law the rape, perhaps the seduction, of an ingenuous youth was
compensated as a personal injury by the poor damages of ten thousand
sesterces".
2Loc cit.
3Loc cit.
4Hunt op cit 3rd edition p 251, citing Contarella Bisexuality in the Ancient
World, 202. See particularly Leviticus 18:22 and 20:13.
5See in particular his books Christianity, Social Tolerance and
Homosexuality (1980) and Same Sex Unions in Pre-Modern Europe (1994).
6See the chapter by the Reverend Ian D Corbett on "Homosexuality in the
traditions of the church" in Germond and De Gruchy (eds) Aliens in the
household of God, Homosexuality and Christian Faith in South Africa (1997)
pp 163-165).
7Op cit, p 166.
8See his Practyke van Civil en Criminele Saken, 1656 edition, p 527.
9See his Praelectiones, ad D. 48.5 nn. 12 and 13.
10Censura Forensis, 1.5.28.7-9.
11 Praelectiones in Libros XLVII et XLVIII Digestorum ad D.48.5.29 (Beinart
and Van Warmelo's translation, Volume 2, pp 856 et seq.)
12Koopmanshandboek, 2.7.7.
13Op cit, 3rd ed p 226.
14See, eg, R v K & F 1932 EDL 71 at 73, 74 and 77 and R v N 1961 (3) SA 147
(T). See also R v M 1969 (1) SA 328 (R) where it was held that if
"unnatural intercourse of a man with a woman" was a crime during the 18th
century in the Netherlands it has since been abrogated.
15Op cit pp 227-8.
16"Dekriminalisasie van Homo-en SoF6filie" (1986) 11 TRW 167.
17See the views of Van Leeuwen, Van der Keessel and Van der Linden to which
I have referred above.
18Loc cit p 254.
19Loc cit.
20See "Sexual Orientation and the Constitution" (1993) 110 SALJ 450 at 464.
21cf. R v B & C 1949 (1) PH, H74 (T), 1949 (2) SA 582 (T); 1949 (2) PH, H
205 (A).
22Op cit, p 254.
23See also Snyman op cit p 341.
24In chapter one.
25At pg 5.
26"Mill on Liberty in Morals" (1965) 32 Univ of Chic L R 215.
27Pp 279-80 (fn 5b).
28Op cit p 377 fn 463.
29(1981) 4 EHRR 149.
30 (1989) 13 EHRR 186.
31(1993) 16 EHRR 485.
321995 (3) SA 391 (CC) at 439 E.
33Whether such an argument if it could be regarded as sustainable on the
facts would or should lead to a different conclusion on the legal question
arising for consideration need not now be considered.
34At pp 44-48.
35See R Dworkin, Freedom's Law p 152 and pp 388-9, fn 4.
36134 L E d 2d at 871.
37At pp 384-6.
38At p 385.
39S v Makwanyane and Another 1995 (2) SACLR (CC) at 42d-g, paragraph 100.
40At 129 F-H esp at G.